Smith & Ors v Ministry of Defence [2011] EWHC 1676 (QB)

“(3)At all material times the Human Rights Act 1998 (‘HRA’) applied as between PH and the defendant. The claimant will aver that: 3.1.PH was serving within the scope of his military duties under the command of his superiors and under the legislative, judicial and executive authority of the United Kingdom at all material times. 3.2.PH was within the UK and/or the military base of Camp Abu Naji at all material times, that is when the relevant acts/omissions of the defendant said to constitute breaches of article 2 of the European Convention on Human Rights (‘the ECHR’) occurred. 3.3.In accordance and/or analogy with the line of authority emanating from Soering v United Kingdom (1989) 11 EHRR 439, PH was within the territory of the UK (to include the military base) at all material times and so within the jurisdiction of the UK for the purposes of article 1 of the ECHR. The fact that his death occurred outside of the military base is incidental. 3.4.The claimant recognises that R (Smith) v Secretary of State for Defence [2010] UKSC 29 is persuasive authority (but not strictly binding) for the proposition that members of the armed forces are not, by virtue of their being subject to the jurisdiction of the UK as a matter of both domestic and international law for all purposes other than the ECHR, also within the jurisdiction of article 1 ECHR. At the same time, the decision in Smith may require revisiting in the light of the awaited ECtHR decision in Al-Skeini v UK and any other relevant ECtHR decisions. The claimant wishes to reserve her position and puts the defendant on notice that she may seek to contend that soldiers are, by virtue of their being under the legislative, judicial and executive authority of the UK under domestic law and in accordance with public international law, within the jurisdiction of the ECHR regardless of their location on the globe and regardless of where the act/omission of which complaint is made occurred.”

“288. Jurisdiction on the basis of ‘authority and control’ (especially outside the Convention states) as a separate head was firmly rejected by the House of Lords in Al-Skeini; see especially Lord Brown at paras 116-127, and Lord Rodger at paras 73-77; and see also Rix LJ speaking for the Administrative Court at para 216 and Brook LJ in the Court of Appeal at para 103.” and see also paragraph 307 in which he said in terms that “jurisdiction cannot be established simply on the basis that the United Kingdom’s armed forces abroad are under the ‘authority and control’ of the United Kingdom, or that there is a ‘jurisdictional link’ between the United Kingdom and those armed forces”

“67. In keeping with the essentially territorial notion of jurisdiction, the court has accepted only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of Art. 1 of the convention. 68. Reference has been made in the court’s case law, as an example of jurisdiction ‘not restricted to the national territory’ of the respondent state (Loizidou v Turkey) (preliminary objections (1995) 20 EHRR 99 at para. 62), to situations where the extradition or expulsion of a person by a contracting state may give rise to an issue under Arts 2 and/or 3 … and hence engage the responsibility of that state under the convention (Soering v UK [1989] ECHR 14038/88 at para. 91, Cruz Varas v Sweden [1991] ECHR 15576/89 at para. 69 and 70, Vilvarajah v UK [1991] ECHR 13163/87 at para. 103). However the court notes that liability is incurred in such cases by an action of the respondent state concerning a person while he or she is on its territory, clearly within its jurisdiction, and that such cases do not concern the actual exercise of a state’s competence or jurisdiction abroad(see also Al-Adsani v UK [2001] ECHR 35763 at para. 39). … 71. In sum, the case law demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a contracting state is exceptional; it has done so when the respondent state, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, importation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by that government.”

“At the inquest into his death the Coroner held that the procedural requirements implicit in Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, scheduled to the Human Rights Act 1998, did not apply to the inquest and that he had no power to provide disclosure of certain information. The coroner’s narrative verdict stated that the deceased’s death had been “caused by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate”

“Bankovic as applied in Al-Skeini confirms that Article 1 reflects the territorial notion of jurisdiction, and that other bases of jurisdiction are exceptional and require special justification. In practice the exceptions recognised by the court have either consisted of (i) territorial jurisdiction by a state over the territory of another contracting state; (ii) extensions of territorial jurisdiction by analogy; and (iii) commonsense extensions of the notion of jurisdiction to fit cases which plainly should be within the scope of the convention.”

“Here, the deaths of Fusilier Gentle and Trooper Clarke occurred in Iraq and although they were subject to the authority of the defendants they were clearly not within the jurisdiction of the UK as that expression in the Convention has been interpreted: R (Al-Skeini) v Secretary of State for Defence … The claimants seek to overcome that problem, in reliance on authorities such as Soering v United Kingdom …, by stressing that their complaint relates to the decision-making process (or lack of it) which occurred here, even though the ill-effects were felt abroad. There is, I think, an obvious distinction between the present case and the Soering case, and such later cases as Chahal v United Kingdom (1996) 23 EHRR 413 and D v United Kingdom (1997) 24 EHRR 423, in each of which action relating to an individual in the UK was likely to have an immediate and direct impact on that individual elsewhere. But I think there is a more fundamental objection; that the claimants’ argument, necessary to meet the object to meet the extra-territorial reality, highlights the remoteness of their complaints from the true purview of Article 2.”

“19. The jurisprudence which has developed from the decision in Soering v United Kingdom … about decisions taken in this country to send people abroad to places where they face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment does not apply. The guarantee in the first sentence of Article 2(i) is not violated simply by deploying service men and women on active service overseas as part of an organised military force which is properly equipped and capable of defending itself, even though the risk of their being killed is inherent in what they are being asked to do.”

“307. This case comes within none of the exceptions recognised by the Strasbourg court, and there is no basis in its case law, or in principle, for the proposition that the jurisdiction which States undoubtedly have over their armed forces abroad both in national and international law means that they are within the jurisdiction for the purposes of article 1. For the reasons given in the preceding section of this judgment, jurisdiction cannot be established simply on the basis that the United Kingdom’s armed forces abroad are under the ‘authority and control’ of the United Kingdom, or that there is a ‘jurisdictional link’ between the United Kingdom and those armed forces… 308. Nor are there policy grounds for extending the scope of the Convention to armed forces abroad. On the contrary, to extend the Convention in this way would ultimately involve the courts in issues relating to the conduct of armed hostilities which are essentially non-justiciable.”

“81. Article 2 may imply in certain well-defined circumstances a positive obligation on the authorities to take preventative operational measures to protect an individual from another individual or, in particular circumstances, from himself … 82. However, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising … 83. The court has had previous occasion to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them … 84. Lastly, the court reiterates that, in the case of mentally ill persons, regard must be had to their particular vulnerability...”

“It is sufficient for an applicant to show that the authorities did not do all that could reasonably be expected of them to avoid a real and immediate risk of life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case. ”

“82. There is, however, a distinction to be drawn between legal and political questions. In A v Secretary of State for the Home Department ([2005] 2 AC 68) at [29], Lord Bingham also held: The more purely political (in a broad or narrow sense) the question is, the more appropriate it would be for political resolution, the less likely it is to be an appropriate matter for judicial decision. The smaller therefore would be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal context of any issue, the greater the potential role of the court because under our constitution and subject to the sovereign power of parliament it is the function of the courts and not of political bodies to resolve legal questions. 83. Likewise, in this case, as it seems to me, Mrs Scholes, is in part seeking, by way of individual rights under Art. 2 of the Convention, to intervene in the political process which determines the allocation of resources to institutions such as secure children’s homes. In my judgment, in so far as she seeks to do so or to establish a right for members of the public to be consulted on these matters, she seeks to carry Convention rights further than authority or Convention jurisprudence would require …”

“Of course, it will often – perhaps even usually – be possible to say that the death might well not have occurred if the soldier had not been ordered to carry out the particular patrol, or if he had been in a vehicle with thicker armour-plating, or if the observation post had been better protected. But, even if that is correct, by itself, it does not point to any failure by the relevant authorities to do their best to protect the soldiers’ lives. It would only do so if – contrary to the very essence of active military service – the authorities could normally be expected to ensure that our troops would not be killed or injured by opposing forces. On the contrary, in order to achieve a legitimate peacekeeping objective, a commander may have to order his men to carry out an operation when he knows that they are exhausted or that their equipment is not in the best condition. Indeed the European Convention on Human Rights owes its very existence to countless individuals who carried out operations in just such circumstances.”

“As Lord Rodger has said, deaths and injuries of soldiers in a combat situation are inevitable. There is no reason, in my view, to anticipate that a similar level of scrutiny to that suitable to the death of a civilian will be required or appropriate where a soldier has been killed in the course of military operations. ... The duty to protect soldiers in a war setting is of an entirely different nature from the obligation to take proper steps to ensure that civilians are not exposed to unnecessary risks from military operations.”

“79. If armed forces on active service abroad are within a state’s jurisdiction for purposes of Article 1, the question arises of the scope of the substantive obligations imposed by Article 2. Would the Strasbourg court hold that they extend to the adequacy of the equipment with which the forces are provided; to the planning and execution of military manoeuvres? These questions are not easy to address, but an affirmative answer certainly cannot be excluded. 80. McCann involved the shooting by an SAS unit of three members of the provisional IRA who were suspected of being about to detonate a bomb in Gibraltar. The court held that Article 2 imposed substantive duties in relation to the planning, execution and control of the operation, and a procedural obligation to investigate these matters in the light of the casualties. The court adopted a similar approach to deaths that resulted from the operations of the Russian military when conducting substantial military operations against insurgents, see Isayeva, Yusupova and Bazayeva v Russia (applications Nos. 57947/00, 57948/00 and 57949/00) and Isayeva v Russia (application No. 57950/00), unreported decisions given on 24 February 2005. There would seem no reason why the court might not adopt a similar approach to operations resulting in the death of a state’s own soldiers. The facts of this case do not require the court to define the positive duties that Article 2 imposes on the state in relation to its armed forces.”

“…one must not overlook the fact that there have been many cases where the death of service personnel indicates a systemic or operational failing on the part of the state. These may range from a failure to provide them with the equipment which is needed to protect life to mistakes made in the way they were deployed due to bad planning or inadequate appreciation of the risks that had to be faced.”

“The guarantee in the first sentence of Article 2(i) is not violated simply by deploying service men and women on active service overseas as part of an organised military force which is properly equipped and capable of defending itself, even though the risk of their being killed is inherent in what they are being asked to do.”

“The fact that the soldier was killed in these circumstances raises no prima facia case for saying that the United Kingdom army authorities have failed in their obligation to protect him and that there has, in consequence, been a breach of his Article 2 Convention rights.”

“126. For these reasons, I am satisfied that, where a service man or woman has been killed by opposing forces in the course of military operations, the coroner will usually have no basis for considering, at the outset, that there has been a violation of any substantive obligation under Article 2.”

“127. Once it is established, say, that a solider died because the blast from a roadside bomb penetrated the armour-plating on his vehicle, it may well be inferred that he would not have died if the plating had been stronger. And that simple fact may be worth pointing out as a possible guide for the future. But questions, say, as to whether it would have been feasible to fit stronger protection, or as to why the particular vehicles were used in the operation or campaign, or as to why those vehicles, as opposed to vehicles with stronger protection were originally purchased by the Ministry of Defence, or as to whether it would have been better to have more helicopters available etc., all raise issues which are essentially political rather than legal. That being so, a curious aspect of counsel’s submissions before this court was the complete absence of any reference to parliament as the forum in which such matters should be raised and debated and in which ministers should be held responsible. Of course, in consequence of pressure brought to bear by Parliament, the government might set up an independent inquiry with wide terms of reference to look into all aspects of a situation, including the political aspects. But we are concerned with the scope of a coroner’s inquest whose function is different. Many of the issues about the deaths of soldiers which are, understandably, of the greatest concern to their relatives are indeed of this much broader nature. In short, they raise questions of policy, not of legality, and so would fall outside the scope of any Article 2 investigation which a coroner might be obliged to carry out.”

“… there is nothing that makes the Convention impossible or inappropriate of application to the relationship between the state and its armed forces as it exists in relation to overseas operations, in matters such as, for example the adequacy of equipment, planning or training.”

“The prospect of the state owing Article 2 obligations to its soldiers serving overseas is not the daunting one that the appellant in this case has portrayed.”

“In this context, I should say that I agree entirely with Lord Rodger JSC’s observations in paragraph 126 of his judgment. It will often be possible to suggest, after an event, matters that could have been taken that might have reduced the risk to a particular soldier but that type of retrospective analysis is surely inapposite (and would be recognised by courts as such) to address the question whether the state’s obligations to its soldiers under Article 2 have been discharged. The duty to protect soldiers in a war setting is of an entirely different nature from the obligation to take proper steps to ensure that civilians are not exposed to unnecessary risks from military operations. I do not believe that the fear of tactical decisions taken in the field by military commanders being subject to painstaking dissection by the courts is justified or that it should deter this court from declaring that when our government commits our armed forces to wars in foreign territories, it cannot deny them the protection that the Convention affords.”

“Exceptionally a defence to the government and indeed individuals who take action in the course of actual or imminent armed conflict and cause damage to property and injury (including possibly death) to fellow soldiers or civilians.”

“In my judgment the circumstances in which the plaintiff was injured clearly constituted “battle conditions” in the sense contemplated by Lord Reid, Lord Pearce and Lord Upjohn in the Burmah Oil case [1965] A.C. 75. Furthermore, I consider that an English court should approach this claim in the same way as the High Court of Australia in the Shaw Savill case, 66 C.L.R. 344. ... As I said earlier, I do not find it necessary to explore the territorial limits of this immunity. It is sufficient to say that in my view it covers the present situation where in the course of hostilities against an enemy a howitzer of the plaintiff’s battalion was engaging the enemy and the plaintiff was a member of the gun team.”

“In addition it may be helpful if I state what my conclusion would be even in the absence of the Australian decisions and the Burmah Oil case [1965] A.C. 75. ... The issue to be determined is whether it is fair, just and reasonable that a duty of care should be imposed on one soldier in his conduct towards another when engaging the enemy during hostilities. In the light of the recent amendment to the plaintiff’s pleading the same question has to be asked in relation to the alleged duty to maintain a safe system of work. ... I am satisfied that in a hypothetical case a court would require proof that the injury was sustained in battle conditions. But here, as it seems to me, the plaintiff’s pleaded case makes the position clear. The question then becomes: “Is a duty of care to be imposed in such conditions so as to make one serviceman liable for his negligent act towards another?”

“To hold that there is no civil liability for injury caused by the negligence of persons in the course of an actual engagement with the enemy seems to me to accord with common sense and sound policy.”

“Like Neill L.J., it is in my judgment clear that public policy does require that, when two or more members of the armed forces of the Crown are engaged in the course of hostilities, one is under no duty of care in tort to another. Indeed, it could be highly detrimental to the conduct of military operations if each soldier had to be conscious that, even in the heat of battle, he owed such a duty to his comrade. My reasons are thus in essence those expressed by Dixon J. in the passage from his judgment in Shaw Savill and Albion Co. Ltd v The Commonwealth, 66 C.L.R. 344 which Neill L.J. has quoted. If during the course of hostilities no duty of care is owed by a member of the armed forces to civilians or their property, it must be even more apparent that no such duty is owed to another member of the armed forces. This conclusion is wholly consistent with, and supported by, the decision of the House of Lords in Burmah Oil Co. Ltd v Lord Advocate [1965] A.C. 75, and depends upon similar reasoning to that adopted by May J. in relation to police officers in Hughes v National Union of Mineworkers [1991] I.C.R. 669. In my judgment, therefore, at common law, one soldier does not owe to another a duty of care when engaging the enemy in the course of hostilities.”

“Mr Hawkesworth, for the plaintiff, sought to amend his pleading to allege that the defendants were ... also directly liable for failure to maintain a safe system of work. I agree with Neil L.J. however that such an amendment makes no difference. The reasons which result in the first question being answered “No” result in the same answer to the second issue.”

“1. A soldier does not owe a fellow soldier a duty of care in tort when either (one or other or both) are engaged with an enemy in the course of combat. 2. The MoD is not under a duty to maintain a safe system of work for service personnel engaged with an enemy in the course of combat. 3. In relation to both (1) and (2) the term combat has an extended meaning in that – a. the immunity is not limited to the presence of the enemy or the occasions when contact with the enemy has been established. It extends to all active operations against the enemy in which service personnel are exposed to attack or the threat of attack. It covers attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement. b. the immunity extends to the planning of and preparation for operations in which the armed forces may come under attack or meet armed resistance. c. the immunity will apply to peace-keeping/police operations in which service personnel are exposed to attack or the threat of attack.”

“In my judgment that submission (that no cause of action canarise in relation to injuries sustained in combat irrespective ofwhether the acts or omissions to which such injuries are attributable fall within the combat immunity) is misconceived, and confuses the issue of the existence of the duty of care with the causation of injury. The issue is whether the MoD is under a duty of care in a particular set of circumstances. If the restriction of the duty of care does not arise on the facts, and a claimant is able to demonstrate breach of duty resulting in injury and consequential loss and damage, it is immaterial that the injury was sustained in the course of combat.”

“… with respect to the argument of state necessity, or a distinction that has been aimed at between state offences andothers, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions. ” adding that: “This is a ringing endorsement of the rule of law and of the system of democratic government. The executive cannot simply assert interests of state or the public interest and rely upon that as a justification for the commission of wrongs …”

“It is closely and imprecisely related to (and in some cases perhaps identical with) a separate concept of necessity. This is exceptionally a defence to the government and indeed individuals, who take action in the course of actual or imminent armed conflict and cause damage to property or injury (including possibly death) to fellow soldiers or civilians. Unlike Act of State, the doctrine has nothing to do with a concern about undermining the acts of the executive in relation to foreign affairs. It is essentially an exception to the Entick v Carrington principle and as such should be narrowly construed … ”

“..questions, say, as to whether it would have been feasible to fit stronger protection, or as to why the particular vehicles were used in the operation or campaign, or as to why those vehicles, as opposed to vehicles with stronger protection, were originally purchased by the Ministry of Defence, or as to whether it would have been better to have more helicopters available etc, all raise issues which are essentially political rather than legal”

“The solution adopted is to have regard to the circumstances of the individual. He must act as would a reasonable person in his position. The standard of reasonableness is to be measured by what may reasonably be expected of the defendant in his individual circumstances. Where action calls for expenditure, the court if necessary will have regard to the financial resources of the defendant. The law does not always shrink away from such an investigation and regards itself as unable ever to make an assessment of competing demands for money.”